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2016 DIGILAW 912 (GUJ)

Dayanand Glass Pvt. Ltd. v. Union of India

2016-04-27

AKIL ABDUL HAMID KURESHI, ALPESH Y.KOGJE

body2016
ORDER : Akil Abdul Hamid Kureshi, J. 1. The petitioner has prayed for a direction to refund an amount of Rs. 3,72,790/- collected by the department of Customs under the heading of anti-dumping duty from the petitioner. Brief facts are as under. 2. Petitioner is a company registered under the Companies Act and is engaged in the manufacturing of mirrors and other glass items. Under bill of entry dated 1-5-2015, the petitioner had imported 200 sheets of 1.9 mm clear float glass from China. The bill of entry was processed by the Customs Authority and the customs duty and the additional duties totaling to Rs. 6,93,756/- was demanded which the petitioner paid. From the bill of entry processed by the Customs Department, copy of which is produced at Annexure: A to the petition, it can be seen that at that stage the demand towards anti-dumping duty was nil. However, it appears that despite the petitioner paying the custom and additional duties as assessed by the Customs Department, the goods were not cleared. The authorities raised a further demand of Rs. 3,72,790/- by way of anti-dumping duty. According to the petitioner, since the goods were not being cleared, the petitioner under duress and under protest, deposited the said sum of Rs. 3,72,790/- on 14-5-2015 with the Customs Authorities. However, since according to the petitioner, no anti-dumping duty was leviable on the product which was imported, the petitioner applied to the authorities to refund such sum, which was unauthorizedly collected from the petitioner. On 3-8-2015, the petitioner wrote to the Deputy Commissioner of Customs and contended as under: "With reference to the above subject, we have filed a Bill of Entry No. 9098728, dated 1-5-2015 of 1.9 mm clear float glass size 1830X1220 mm. Through our CB Agent M/s. D & J Shipping Services. Gandhidham. On that bill of entry, we have paid under protest anti-dumping duty Rs. 3,72,790/- (Rs. Three Lac Seventy Two Thousand Seven Hundred Ninety Only). On dated 14th May, 2015, Vide challan No. MP & SEZ/190/2015-16, CHEQUE No. 259183, dated 13th May, 2015. As per the notification by Chief Commissioner's of custom, we have paid the under protest anti-dumping duty Rs. 3,72,790/- (Rs. Three Lac Seventy Two Thousand Seven Hundred Ninety Only). But actually, it is not applicable on the subject import. Hence we humbly request to your good self that kindly refund the same amount. As per the notification by Chief Commissioner's of custom, we have paid the under protest anti-dumping duty Rs. 3,72,790/- (Rs. Three Lac Seventy Two Thousand Seven Hundred Ninety Only). But actually, it is not applicable on the subject import. Hence we humbly request to your good self that kindly refund the same amount. As soon as possible." 3. In response to the said letter dated 3-8-2015, the Deputy Commissioner under his communication dated 26-8-2015 conveyed to the petitioner as under: "2. With reference to your refund it is to inform that whatever has been assessed has been paid by you. As per the law nothing is refundable unless the duty is re-quantified. Therefore, you have been advised to either get the B/Es re-assessed with desired notification/Circular benefit or file an appeal against B/E with Commissioner (Appeal) for re-determination of duty. 3. Please note refund section does not have authority to suo motu decide the matter whether notification/Circular benefits is available or otherwise. 4. In view of the above, refund application dated 3-8-2015 alongwith all relevant documents returned herewith as the refund is premature. Encl: As above" 4. After failing to get positive response from the department, the petitioner filed this petition. In the petition, the petitioner has firmly averred that there is no anti-dumping duty prescribed for the product imported by the petitioner viz. 1.9 mm clear float glass from China. To this vital aspect of the matter, the department in its reply dated 18-4-2016 has not raised any dispute. Instead what is suggested is that the petitioner should have preferred appeal against the said order dated 26-8-2015 passed by the Deputy Commissioner of Customs. It is also suggested that the petitioner could have got the bill of entry reassessed or file appeal against the assessment. 5. From the above materials on record, it can be seen that the department has not produced any document suggesting that anti-dumping duty was leviable on the product in question imported from China. The petitioner's assertions before the authorities as well as in the petition in this respect have not been disputed by the department at any stage. We must therefore, proceed on the basis that though there was no anti-dumping duty prescribed at the time when the petitioner imported the goods, the authorities collected a sum of Rs. 3,72,790/- from the petitioner under the guise of payable anti-dumping duty. We must therefore, proceed on the basis that though there was no anti-dumping duty prescribed at the time when the petitioner imported the goods, the authorities collected a sum of Rs. 3,72,790/- from the petitioner under the guise of payable anti-dumping duty. The amount so collected by the department was thus, wholly unauthorizedly done. When no levy was prescribed, the department could not have collected the same from the importer. The modes of correction suggested by the department do not appeal to us. Firstly, we do not think, a separate invoice under which the petitioner was forced to pay Rs. 3,79,790/-, can be stated to be an order of assessment of bill of entry. The question of appealing against said order therefore, does not arise. Even if we treat this calculation as an order of the Deputy Commissioner, nothing prevents us from examining the legality of such an order and in facts of the present case, when we find that collection was totally illegal, from striking it down. When a duty is collected wholly without authority of law and therefore, without jurisdiction, the question of alternative remedy becomes insignificant, to suggest that the order passed by the Deputy Commissioner dated 26-8-2015 is appealable is not quite correct. It is a mere communication refusing the petitioner's request for refund on the ground that he has no power to suo motu allow refund and it is not an order which is appealable. Even if it were to be so, we would have exercised our jurisdiction to strike down the same. 6. In the result, petition is allowed. The respondent shall refund the sum of Rs. 3,72,790/- to the petitioner alongwith simple interest at the rate of 8% from the date of deposit till actual refund which shall be done latest by 31-5-2016. Petition is disposed of.